28 Sex Work and The Law

LAWS ON SEX WORK

The Digest of Roman law is concerned only with female sex workers, and says the following about women who work in the sex trade:

Ulpian, On the Lex Julia et Papia, Book I.

We hold that a woman openly practices prostitution, not only where she does so in a house of ill-fame, but also if she is accustomed to do this in taverns, or in other places where she manifests no regard for her modesty.

(1) We understand the word “openly” to mean indiscriminately, that is to say, without choice, and not if she commits adultery or fornication, but where she sustains the role of a prostitute.

(2) Moreover, where a woman, having accepted money, has intercourse with only one or two persons, she is not considered to have openly prostituted herself.

(3) Octavenus, however, says very properly that where a woman publicly prostitutes herself without doing so for money, she should be classed as a harlot.

(4) The law brands with infamy not only a woman who practices prostitution, but also one who has formerly done so, even though she has ceased to act in this manner; for the disgrace is not removed even if the practice is subsequently discontinued.

(5) A woman is not to be excused who leads a vicious life under the pretext of poverty.

(6) The occupation of a pander is not less disgraceful than the practice of prostitution.

(7) We designate those women as procuresses who prostitute other women for money.

(8) We understand the term “procuress” to mean a woman who lives this kind of a life on account of another.

(9) Where one woman conducts a tavern, and keeps others in it who prostitute themselves, as many are accustomed to do under the pretext of employing women for the service of the house; it must be said that they are included in the class of procuresses.

(10) The Senate decreed that it was not proper for a Senator to marry or keep a woman who had been convicted of a criminal offence, the accusation for which could be made by any of the people; unless he was prohibited by law from bringing such an accusation in court.

Digest Book 23.43

Sex workers were not just female. The Tabula Heracleensis are the regulations of a town in Southern Italy that gained Roman citizenship in 89 BCE. These forbade men who sold their bodies for a variety of purposes from sitting with various town officials in public places:

25 No one shall become a decurion or a conscript in the senate of any municipality, colony, prefecture, market, or meeting place of Roman citizens, nor shall anyone who comes under the following categories be permitted to express his opinion or to cast his vote in that body: anyone who is condemned for theft which he himself has committed or who compounds such theft; anyone who is condemned in an action for trusteeship, partnership, guardianship, mandate, infliction of injury or fraud; anyone who is condemned either by the Plaetorian Law or for something that he has done or does contrary to that law;” anyone who binds himself to fight as a gladiator; anyone who denies a debt on oath before the praetor or takes an oath that he is solvent; anyone who gives notice to sureties or creditors that he cannot pay his debt in full or who compounds with them to that effect; anyone for whom the sureties pay and settle the obligation; anyone whose possessions are seized and advertised for sale at public auction by the edict of the magistrate in charge of the administration of justice, excepting the cases of those whose property was so treated when they were wards, or of someone who was absent on public business, provided that he does not contrive fraudulently to be absent for such purpose; anyone who is condemned at Rome by public trial whereby it is unlawful for him to remain in Italy and who is not restored to his former status; anyone who is condemned by public trial in that municipality, colony, prefecture, market, or meeting place of which he is a citizen; anyone who is condemned of having lodged a false accusation or of having done something from collusion; anyone who is deprived of his rank in the military service because of disgrace; anyone whom a general dismisses from the army in disgrace; anyone who takes money or any other reward for bringing in the head of a Roman citizen; anyone who prostitutes his body for gain; anyone who trains gladiators or acts on the stage or keeps a brothel. If any of the aforesaid persons in contravention of this law takes his place or gives his vote among the decurions or the conscripts in the senate of the above-mentioned communities he shall be liable to a penalty of 50,000 sesterces to be paid to the State, and anyone so minded shall be entitled to sue for that sum.

Tabula Heracleensis 25

TAXING SEX

The Emperor Caligula was the first to impose a tax on prostitutes, a tax which was charged on sex workers across the empire, and which was collected by the army. The collection of the tax could be used as a means harass sex workers, with extra payments coerced on occasion.

He levied new and unheard of taxes, at first through the publicans and then, because their profit was so great, through the centurions and tribunes of the praetorian guard; and there was no class of commodities or men on which he did not impose some form of tariff. On all eatables sold in any part of the city he levied a fixed and definite charge; on lawsuits and legal processes begun anywhere, a fortieth part of the sum involved, providing a penalty in case anyone was found guilty of compromising or abandoning a suit; on the daily wages of porters, an eighth; on the earnings of prostitutes, as much as each received for one embrace; and a clause was added to this chapter of the law, providing that those who had ever been prostitutes or acted as panders should be liable to this public tax, and that even matrimony should not be exempt.

Suetonius, Life of Caligula 40.1

Occasionally, taxes raised by this could be directed towards specific public ends:

The Emperor Alexander Severus placed a tax on pimps and both male and female prostitutes, with the stipulation that the income thus raised go not into the public treasury but towards the cost of restoring the Theatre, the Circus, the Colosseum, and the Stadium.

Historia Augusta, Severus Alexander 24.3

However, once in a while some justice was done. A papyrus records the death of a prostitute and a judge’s decision in the case about compensation for her mother in the 4-5^th century CE. Hermoupolis, Egypt, 4th-5th cent. CE. It is remarkable for the fact that the magistrate has sympathy for these outsiders:

Case against a certain senator, Diodemus of Alexandria, who was in love with a public prostitute. He was dining with the prostitute at evening time. Diodemus killed the prostitute, and when Zephyrus learned about it, he ordered Diodemus to be put into prison … The other senators ask that he be released, but Zephyrus insists that he must remain in prison.(7) Diodemus admits that he killed the prostitute. A certain Theodora, an old woman and a pauper, asks that Diodemus be compelled for her support to provide some small consolation for her daughter’s life. For she said, ‘this is why I gave my daughter to the pimp, so that I might have a means of support. Now that my daughter is dead I am deprived of my support, and on this account I ask that some small amount, appropriate for a woman, be given for my support.’

The prefect’s decision:

You killed this woman, Diodemus, in a disgraceful way, a woman who gives a bad impression of human fortune, because she spent her life in an unholy manner and in the end sold [some letters missing]. And indeed I pity the poor creature, who when she was alive was laid out for those who wanted her, like a dead body. The poverty of her lot was so insistent that she sold her body and brought dishonour upon her name and reputation and took on a prostitute’s life with its many hardships … (8). I order that because you have destroyed the honour of the city council with the sword that you be banished as a murderer. Theodora, the poor old mother of the dead woman, who because of her own poverty deprived her daughter of her chastity, and so also caused her death, is to receive as her share one tenth of Diodemus’ property; this is what required by law, with humanitarian considerations supporting the law’s authority.

Berlin Papyrus 1024.6-8^[1]

Roman Law on Prostitution: The following laws come from the Digest of Justinian, an enormous compendium of Roman law compiled during the reign of the Emperor Justinian. As such they represent a body of law built up over many centuries, and incorporate a range of juridical opinions from a range of individuals.

Book 3 – on infamia

6) He also forbids a party to appear before him in behalf of others, who has suffered his body to be used like that of a woman. If, however, he has been violated by robbers or by enemies, he should not be branded with infamy, as Pomponius says.

Digest 3.1.6

PIMPING

Titulum 2(2) …He acts as a pimp who profits by the prostitution of slaves, but where anyone obtains such profit by means of free persons, he is also a pimp. Moreover, where he makes this his principal occupation, or as an addition to some other business; as, for instance, where he is an inn-keeper or a stable-keeper and has slaves of this kind for attendance on strangers, and, by means of their opportunities he obtains money in this manner; or if he is a bath-keeper, as is the custom in some provinces, and has slaves for the purpose of taking care of the clothes of customers, and these are guilty of such practices in the baths, he is liable to the punishment of a pimp. (3) Pomponius is of the opinion that a slave who uses for this purpose other slaves who are his private property^[2] is branded with infamy after he has obtained his freedom.

Ulpian, On the Edict, Book 6.2-3

The Emperor [Septimius] Severus stated in a Rescript that a woman was not branded with infamy who had been compelled to prostitute herself for money while in slavery.

INFAMY AND MARRIAGE

These following all come from Book 23 of the Digest, which is dedicated to discussing who could marry who legally under Roman law; as such it talks not just about prostitutes but actors and other entertainers, who also carried infamia, and as such could not marry high-status individuals.

It is understood that disgrace attaches to those women who live unchastely and earn money by prostitution, even if they do not do so openly.

If a woman should live in concubinage with someone besides her ex-master, I say that she does not possess the virtue of a matron.

41.Marcellus, Digest, Book XXVI.

In unions of the sexes, it should always be considered not only what is legal, but also what is decent.

(1) If the daughter, granddaughter, or great-granddaughter of a Senator should marry a freedman, or a man who practices the profession of an actor, or whose father or mother did so, the marriage will be void.

42.Modestinus, On the Rite of Marriage.

We hold that a woman openly practices prostitution, not only where she does so in a brothel, but also if she is accustomed to do this in taverns, or in other places where she manifests no regard for her modesty.

(1) We understand the word “openly” to mean indiscriminately, that is to say, without choice, and not if she commits adultery or fornication, but where she sustains the role of a prostitute. (2) Moreover, where a woman, having accepted money, has intercourse with only one or two persons, she is not considered to have openly prostituted herself. (3) Octavenus, however, says very properly that where a woman publicly prostitutes herself without doing so for money, she should be classed as a whore. (4) The law brands with infamy not only a woman who practices prostitution, but also one who has formerly done so, even though she has ceased to act in this manner; for the disgrace is not removed even if the practice is subsequently discontinued. (5) A woman is not to be excused who leads a vicious life under the pretext of poverty. (6) The occupation of a pimp is not less disgraceful than the practice of prostitution. (7) We designate those women as procuresses who prostitute other women for money. (8) We understand the term “procuress” to mean a woman who lives this kind of a life on account of another. (9) Where one woman conducts a tavern, and keeps others in it who prostitute themselves, as many are accustomed to do under the pretext of employing women for the service of the house; it must be said that they are included in the class of procuresses.

43. Ulpianus, On the Lex Julia et Papia, Book I.

The section continues on discussing other women who could not marry senators.

The daughter of a Senator who has lived in prostitution, or has exercised the calling of an actress, or has been convicted of a criminal offence, can marry a freedman with impunity, for she who has been guilty of such depravity is no longer worthy of honor.

47. Paulus, On the Lex Julia et Papia, Book II.